059-266.xml

Title: [6 July 1804 Procedure & Evidence]

Description: 6 July 1804

Procedure & Evidence

Evils causes

4th order

'.2 Fallaciousness

2. Evil the cause of which is sought - -- 2 evil of the 3rd order

Fallaciousness in this or that article /lot/ of evidence.

I. Personal evidence and written evidence

1. Natural causes

1. Influence of the several causes of incorrectness in testimony: which see.

2. Influence of the several causes of mendacity and bias in testimony: which see.

3. Insufficiency of the several causes of veracity: which see.

II. Factitious causes negative.

1. Omission on the part of the legislator to require pre-appointed and thence trustworthy evidence in cases that admitt of such pre-appointment: i.e. of a ----- of witnesses /evidence/ to ---- for the proof of a fact before it has taken place. See

2. Omission on the part of the legislator to make the requisite arrangements for the preserving by registration such evidence as requires to be preserved.

3. Omission on the part of the legislator to ---- for all cases alike (particular cases /specified cases/ excepted, where the evil of vexation and expence would preponderate) that mode of extracting /extraction/ the evidence which is best calculated for rendering it trustworthy: such alone excepted in which the advantage in point of trustworthiness would not pay for the evil in the shape of delay, vexation & expence.

III. Factitious causes positive

3. Positive encouragement given to mendacity by the legislator and under his authority by the judge, in various ways.

Examples

1. Facts known to be false alleged by the judge, under the name of fictions for the grounds and reasons of his decision.

2. Parties /A party/ compelled to exhibit facts notoriously false (also under the name of fiction) on pain of losing his cause.

3. A party allowed to advantage himself in the course of procedure in various ways, by false allegations, without being punished or prosecuted[?] in any way for the mendacity.  Re---- onwards.

059-265.xml

Title: [5 July 1804 Procedure & Evidence]

Description: 5 July 1804

Procedure & Evidence

Evils causes

4th order

'.1 Unforthcomingness of evidence

II. Real and Written Evidence

I. Natural causes

1. The person in whose custody or power the source of evidence is, not known

2. - his abode or other means of corresponding with him not known

3. When called upon to produce the evidence in question, he neither brings it nor --ds it.

4. He takes /conveys/ it or sends it out of the jurisdiction of the court.

5. He destroys it, or loses it by forgetfulness

6. He conveys it into other hands

7. By his death it passes to other hands unknown

8. The party is unable to defray the necessary expence of producing the original or (when admissible) taking draft or copies.

9. Delay, the ---- ----- as -----

II. Factitious causes negative

1. Want of arrangements proper for the discovery of the source of evidence: i.e. of the place where /in which/, or the individual in whose custody or power it is.

2. Want of effectual arrangements for compelling the production of it, or a transcript from it.

3. Delay - any factitious length, as above, being the result of the operation of negative causes, as above. See Delay.

III. Factitious causes positive, exemplified

3. Exclusion of the evidence on the ground of untrustworthiness without sufficient cause

4. ------ exclusion of the evidence on the ground of the vexation that would be produced (it is supposed) to this or that person by the disclosure of it.

5. Delay - any factitious length, the result of the operation of positive causes - see delay.

059-223.xml

Title: [27 May 1805 Evidence Introd]

Description: 27 May 1805

Evidence

Introd.

ch. Evils causes - non demand

(1

Considering litigation as an evil, wherein does the evil consist? Indubitably, either in judicial vexation, judicial expence, or in both together.

But how But in what case is there anything in it of pure evil? Where being necessary to the fulfilment of the more important ends it is not /the evil if/ in quantity and proportion /-- ----/ preponderant over the good consisting in the fulfilment of those ends? No certainly.

When upon the whole it is an evil, it is so no otherwise than because and where the vexation of which it consists (the expence included) as either necessary or preponderant.

Under this limitation and not otherwise it becomes the legislator to use his endeavours to suppress it altogether. But in all cases it is also the duty of the legislator to use employ/ his endeavours to reduce the quantum of it to its minimum: to the least quantity to which it can be reduced, consistently with the regard due to the other ends of justice.

To use /employ/ his endeavours to this end, is to apply /employ/ such arrangements as promise to be effectual in the character of remedies: but to know /determine/ what are the proper remedies to the mischief a preliminary step is to ---- what are its real causes. The causes are

1. On the part of the law the uncertainty of the law. By this circumstance litigants of both descriptions blameable and unblamable, are engaged as will be seen in the branch of vexatious litigation /procedure/. Remedy giving to the law the utmost degree of certainty of which it is susceptible.

2. On the part of either party, mala fides, or the party grounding his hopes of success on false or fallacious evidence, the falsehood or fallaciousness of which he is himself ------ed. Remedies the several remedies proper to be applied by the law against unforthcomingness and fallaciousness on the part of the evidence.

3. On the part of either party, mala fides, the party grounding his hopes of success on the detaining or -------ing by means of vexation and expense the adverse party from commencing or continuing his demand or defence. Remedies 1. negative, forbearing altogether to make any ---- addition to the naturally necessary quantity either of vexation or expence: 2. Arrangements for defraying the naturally necessary expence, in favour of such suitors (including would-be) suitors as possess not the means of defraying it for themselves.